Posted on 04/13/2007 6:21:15 PM PDT by blam
Irish angler uses Magna Carta on landowner
By Tom Peterkin, Ireland Correspondent
Last Updated: 1:47am BST 14/04/2007
The Duke of Devonshire's ownership of Ireland's most prolific salmon river is to be challenged by an angler in a landmark court case that evokes the historic tensions between the English aristocracy and the Irish.
Michael O'Shea will cite the 1215 Magna Carta signed by King John to argue that he has the right to fish the Blackwater as he attempts to overturn a poaching conviction.
His case will question the Devonshires' entitlement to the river, which is on the border of Co Cork and Co Waterford.
The dispute will come to a climax at the end of this month when the case is heard in the Waterford Circuit Court, 40 miles from the Duke of Devonshire's fairytale Irish residence, Lismore Castle, which has been in the family since 1753.
The castle serves as a retreat for the Devonshires when they are not at the 175-room Chatsworth House in Derbyshire.
Their long association with Ireland has survived hostility towards the English ruling classes from Irish nationalists.
Mr O'Shea of Dungarvan, Co Waterford, a former Waterford Crystal glass cutter, was fined £35 in 2005. He had fished the same beat for 30 years but it was discovered that he was no longer a member of the local fishing association and did not have a visitor's permit.
The Magna Carta, which also applied in Ireland, gave the public the right to fish on large tidal rivers such as the Blackwater that were not under private ownership by the time it was signed.
Paddy Gordon, Mr O'Shea's lawyer, said: "Exercising dominion over tidal waters is unacceptable and that's our main gripe."
Interesting, I’m bookmarking this. Thanks for posting it.
“But from these countless evils we have been set free, by the help of Him Who though He afflicts yet heals and restores, by our most tireless Prince, King and Lord, the Lord Robert. He, that his people and his heritage might be delivered out of the hands of our enemies, met toil and fatigue, hunger and peril, like another Macabaeus or Joshua and bore them cheerfully. Him, too, divine providence, his right of succession according to or laws and customs which we shall maintain to the death, and the due consent and assent of us all have made our Prince and King. To him, as to the man by whom salvation has been wrought unto our people, we are bound both by law and by his merits that our freedom may be still maintained, and by him, come what may, we mean to stand. Yet if he should give up what he has begun, and agree to make us or our kingdom subject to the King of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours, and make some other man who was well able to defend us our King; for, as long as but a hundred of us remain alive, never will we on any conditions be brought under English rule. It is in truth not for glory, nor riches, nor honours that we are fighting, but for freedom — for that alone, which no honest man gives up but with life itself.”
Declaration of Arbroath, 1320.
COMMON PISCARY AND FREE NAVIGATION
Under English common law, navigable waters were only those effected by the ebb and flow of the tides. The “Crown” owned navigable riverbeds up to the ordinary high water mark. The public had the common right or “liberty” to use a navigable waterways as a public fishery, as well as a public highway. The public also had a right to use the river’s banks to the high water mark for purposes of access, cleaning fish or towing barges by draft animals.
Lord Hale was cited in authority by both Justice Taney and Justice Thompson in the case Martin v. Waddell’s Lessee, 41 U.S. 367 (1842):
“The rules and principles laid down by Lord HALE, as we find them in Hargrave’s Law Tracts, are admitted as containing the correct common-law doctrine as to the rights and power of the king over the arms of the sea and navigable streams of water. We there find it laid down, that the king of England hath a double right in the sea, viz., a right of jurisdiction, which he ordinarily exercises by his admiral, and a right of propriety or ownership. Harg. 10. The king’s right of propriety or ownership in the sea and soil thereof, is evinced principally in these things that follow. The right of fishing in the sea, and the creeks and arms thereof, is originally lodged in the crown; as the right of depasturing is originally lodged in the owner of the coast whereof he is lord, or as the right of fishing belongs to him that is the owner of a private or inland river. But though the king is the owner of this great coast, and as a consequence of his propriety, hath the primary right of fishing in the sea, and the creeks and arms thereof; yet the common people of England have regularly a liberty of fishing in the sea, or creeks or arms thereof, as a public common of piscary, and may not, without injury to their right, be restrained of it, unless in such places, creeks or navigable rivers, where either the king or some particular subject hath gained a propriety exclusive of that common liberty (p. 11). In many ports and arms of the sea, there is an exclusion of public fishing by prescription or custom (p. 12), although the king hath prima facie this right in the arms and creeks of the sea, communi jure, and in common presumption; yet a subject may have such a right in two ways. 1. By the king’s charter or grant; and this is without question. The king may grant fishing within some known bounds, though within the main sea, and may grant the water and soil of a navigable river (p. 17); and such a grant ( when apt words are used) will pass the soil itself; and if there shall be a recess of the sea, leaving a quantity of land, it will belong to the grantee. 2. The second mode is by custom or prescription. There may be the right of fishing, without having the soil, or by reason of owning the soil, or a local fishery that arises from ownership of the soil (p. 18). That, de communi jure, the right of the arms of the sea belongs to the king; yet a subject may have a separate right of fishing, exclusive of the king and of the common right of the subject (p. 20). But this interest or right of the subject must be so used as not to occasion a common annoyance to the passage of the ships or boats; for that is prohibited by the common law, as well as by several statutes. For the jus privatum that is acquired to the subject, either by patent or prescription, must not prejudice the jus publicum, wherewith public rivers or arms of the sea are affected for public use (p. 22)-as the soil of a highway, in which, though in point of property, may be a private man’s freehold, yet it is charged with a public interest of the people, which may not be prejudiced or damnified (p. 36).”
In his review of matters applying to the “sea and its arms,” Justice Gray in Shively v. Bowlby, 152 U.S. 1 (1894) states:
‘The shore is that ground that is between the ordinary high-water and low-water mark. This doth prima facie and of common right belong to the king, both in the shore of the sea and the shore of the arms of the sea.’ Harg. Law Tracts, pp. 11, 12. And he afterwards explains: ‘Yet they may belong to the subject in point of propriety, not only by charter or grant whereof there can be but little doubt, but also by prescription or usage.’ ‘But, though the subject may thus have the propriety of a navigable river part of a port, yet these cautions are to be added, viz.: ... (2) That the people have a public interest, a jus publicum, of passage and repassage with their goods by water, and must not be obstructed by nuisances;’ ‘for the jus privatum of the owner or proprietor is charged with and subject to that jus publicum which belongs to the king’s subjects, as the soil of an highway is, which though in point of property it may be a private man’s freehold, yet it is charged with a public interest of the people, which may not be prejudiced or damnified.’ Id. pp. 25, 36.
“So in the second part, De Portibus Maris, Lord Hale says that ‘when a port is fixed or settled by’ ‘the license or charter of the king, or that which presumes and supplies it, viz. custom and prescription,’ ‘though the soil and franchise or dominion thereof prima facie be in the king, or by derivation from him in a subject, yet that jus privatum is clothed and superinduced with a jus publicum, wherein both natives and foreigners in peace with this kingdom are interested, by reason of common commerce, trade, and intercourse.’ ‘But the right that I am now speaking of is such a right that belongs to the king jure prerogativae, and it is a distinct right from that of propriety; for, as before I have said, though the dominion either of franchise or propriety be lodged either by prescription or charter in a subject, yet it is charged or affected with that jus publicum that belongs to all men, and so it is charged or affected with that jus regium, or right of prerogative of the king, so far as the same is by law invested in the king.’ Id. pp. 84, 89.
“In England, from the time of Lord Hale, it has been treated as settled that the title in the soil of the sea, or of arms of the sea, below ordinary high-water mark, is in the king, except so far as an individual or a corporation has acquired rights in it by express grant, or by prescription or usage, (Fitzwalter’s Case, 3 Keb. 242, 1 Mod. 105; 3 Shep. Abr. 97; Com. Dig. ‘Navigation,’ A, B; Bac. Abr. ‘Prerogative,’ B; King v. Smith, 2 Doug. 441; Attorney General v. Parmeter, 10 Price, 378, 400, 401, 411, 412, 464; Attorney General v. Chambers, 4 De Gex, M. & G. 206, 4 De Gex & J. 55; Malcomson v. O’Dea, 10 H. L. Cas. 591, 618, 623; Attorney General v. Emerson, [152 U.S. 1, 1891] App. Cas. 649;) and that this title, jus privatum, whether in the king or in a subject, is held subject to the public right, jus publicum, of navigation and fishing, (Attorney-General v. Parmeter, above cited; Attorney General v. Johnson, 2 Wils. Ch. 87, 101- 103; Gann v. Free Fishers, 11 H. L. Cas. 192.) The same law has been declared by the house of lords to prevail in Scotland. Smith v. Stair, 6 Bell, App. Cas. 487; Lord Advocate v. Hamilton, 1 Macq. 46, 49. It is equally well settled that a grant from the sovereign of land bounded by the sea, or by any navigable tide water, does not pass any title below high-water mark, unless either the language of the grant, or long usage under it, clearly indicates that such was the intention. Lord Hale, in Harg. Law Tracts. pp. 17, 18, 27; Somerset v. Fogwell, 5 Barn. & C. 875, 885, 8 Dowl. & R. 747, 755; Smith v. Stair, 6 Bell, App. Cas. 487; U. S. v. Pacheco, 2 Wall. 587.
“By the law of England, also, every building or wharf erected, without license, below high-water mark, where the soil is the king’s, is a purpresture, and may, at the suit of the king, either be demolished, or be seized and rented for his benefit, if it is not a nuisance to navigation. Lord Hale, in Harg. Law Tracts, p. 85; Mitf. Eq. Pl. (4th Ed.) 145; Blundell v. Catteral, 5 Barn. & Ald. 268, 298, 305; Attorney General v. Richards, 2 Anstr. 603, 616; Attorney General v.Parmeter, 10 Price, 378, 411, 464; Attorney General v. Terry, 9 Ch. App. 425, 429, [152 U.S. 1, 14] note; Weber v. Commissioners, 18 Wall. 57, 65; Barney v. Keokuk, 94 U.S. 324, 337.
Fishing PING!!
ping
Awesome!! I needed a modern news story that has a direct link to that time period. Extra Credit here I come.
Sounds fishy to me. I think the scales of justice will figure this out.
“I wouldn’t even bother today. The sound has been fished out for 20 years! Better off getting a charter out of montauk, at least your guaranteed some action.”
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So the Sound is fished out, eh? From your pronouncement I can only assume that you are either a Montauk charterman or that your wallet far outweighs your fishing skills and knowledge.
Groan. That humor is definitely sunken.
It’s just my netty sense of humor.
I’ll give you that fluking in the Sound ain’t good, never was, wrong type of bottom under most of the Sound. As for bass, there’s plenty of legal bass every year....if you know where to fish for them. You make no mention of winter flounder, a mainstay on the East end. Porgies, again if you know where to fish. Also, though cyclical and never in numbers like the Great South Bay but well worth the effort in early summer, weakfish. Almost every late spring mackerel invade. Bonito and false albacore are often present anytime from late summer to mid fall. If you know kids that want to fish, nothing can turn a youngster on to the endeavor like the late summer/early fall snapper run. Of course there is also bluefish anytime from early summer to Nov.
Since you seem most interested in table fare, I’ve saved the best for last, BLACKFISH! West end to East, LI Sound provides tremendous habitat for togs. Anytime from when the lilacs are in bloom until well into winter they can be found throughout the sound on rocky bottom in both numbers and size.
I’ve always (until I left the Apple in 02) found Oct. to be the best month for fishing the Sound for variety, numbers and size.
If you only go fishing 6 - 8 - 10 times a year, then by all means, charters (if you can afford them) are the way to go. You pay someone else to take you to the fish, set up your equipment, provide the bait... and all you have to do is reel. Party boats are also good, but on them you will see that, on average, 90% of the fish are caught by 10% of the fares. Why do you think that is? If you want to be a fisherman, knowledge is your key weapon. Knowledge of your quarry’s patterns and preferences, the habitat and the forage.
I almost decided to just ignore your last post. The way you came off led me to think of you as just a blow hard. Then the ‘jr’ in your user name made me think that maybe it was nothing more than youthful bravado. Either way, neither of those traits will help in this pastime. You have to talk to people. The ‘regulars’ on the party boats, the beach and pier rats on shore and the other fisherman (as opposed to boaters) in the marina. Questions and a touch of humility will gain you a wealth of that knowledge that is needed to be a successful fisherman. Also, there is no substitute for time on the water, beach or pier. Pay attention and keep a log. There is no way you can remember everything!
I’ll give you blackfish... probably the best fish to catch in the sound .. lots of fight, great eating & still around. I wasn’t trying to come off as a blowhard. I’ve been fishing the sound for 25 years and the fishing has gotten steadily worse over that time. The amount of people in suffolk has exploded in the past 10 years. With that the number of boaters have also exploded. Just check out buoy 10 off of PJ harbor to see the mess today. You can still find fish towards the east end but even plum gut gets really crowded these days. My stomping grounds are from PJ harbor to the point usually & its sad to see how the fishing has changed.
Having said that, I have never caught 3 50 pound bass off a troll like I have done numerous times fishing montauk. Maybe its the currents, the cliff or migratory routes of the fish .. I don’t know for sure. All I do know is that the few times a year I go out of montauk for bass, tuna, mako or fluke I usually have alot more action then in the sound.
Last two weeks of June, try coming West. Center Island and Matinicock reefs. Troll umbrellas or bunker spoons on wire (250 - 300 ft.) at speeds a bit above those at Montauk with umbrellas. Your rod tip will tell you when the speed is right for the spoon. Start at buoy distance from the shore and go back and forth over each reef, working towards shore. When your baits start hitting the rocks, speed up a touch. You may be very pleasantly surprised.
If I told you, I’d have to kill you. }:^)
As it is, if ccc_jr talks to others at these locations and mentions my screen name, I could be in for a world of hurt... and I now live 500 miles away!!!
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